August 2013

We promise we probably won't use it - Copyright ownership on social media

Much has been written about the considerable rise of social media in the past decade, both in the private and commercial spheres. A growing number of people now have Facebook, Twitter and/or Instagram accounts, and the majority of businesses now utilise social media in some way. However, from an Australian copyright perspective, the benefits of social media come with certain dangers. This was highlighted in late 2012 when Instagram attempted to change its Terms and Conditions, which users believed would allow Instagram to commercially exploit their copyright for free. Instagram faced a significant backlash, and so cancelled the proposed changes and reinstated its previous terms and conditions, assuring the public that it was not Instagram’s “intention” to sell its users’ photos.

Despite Instagram’s assurance, there is no reason why Instagram could not change its policy in the future. So we thought that we would look at just what Australian users of the big social media sites agree to in relation to their copyright when using the various services.

Copyright generally

Before looking at the specific legal issues, it is important to appreciate what rights most people have to copyright.

Generally, the person who creates something in which copyright subsists, is the owner of that copyright. If a person takes a photograph, makes a video recording, or writes a literary piece, they will generally own the copyright in that work. There are, of course, exceptions to this general rule, such as when copyright is made by an employee as part of their employment, in which case it is owned by the employer.

The owner of a piece of copyright is the only person who is entitled to deal with that copyright, unless they licence it to another person.

Facebook, Instagram and Twitter

The legal relationship between Facebook, Instagram and Twitter on the one hand, and a user on the other, is mainly governed by each website’s “Terms and Conditions”. A user must agree to each and all of these Terms and Conditions when creating an account, with no option to “opt out” of some or all of them. If a user does not agree by clicking “I agree”, they simply cannot use the respective service.

Facebook, Twitter and Instagram all have, in their Terms and Conditions, specific clauses which relate to the “content” which a user posts. The “content” is anything which a user causes to be uploaded onto each website, and importantly, would include images, videos and literary works. These clauses currently read as follows:

Facebook: “you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook”.

Instagram: “Instagram does not claim ownership of any Content that you post on or through the Service. Instead, you hereby grant to Instagram a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to use the Content that you post on or through the Service...”

Twitter: “you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).

As indicated, a user must agree to the above terms when creating an account on each respective service.

By agreeing to the terms and conditions, every Facebook, Instagram and Twitter user effectively grants the respective website a binding licence to use and commercially exploit any material which the user uploads or posts on the website, without any obligation to compensate the user.

To make matters more concerning, each service’s Terms and Conditions also contain a clause by which a user must agree that they have the right to post any material which they post on each website, and that they are entitled to grant the licences as outlined above. If any damage is caused to the service as a result of the posting of the content, or the user not being entitled to grant the licence which they did, the user is liable to the service.

What does this mean?

Importantly, if you post anything on Facebook, Twitter or Instagram, you lose the exclusive right to use that content. You can still use your content, but so can Facebook, Instagram or Twitter, as well as any other third party who is granted a licence by Facebook, Instagram or Twitter, and all for free.

For an average user, this could include their photographs, videos or posts. For an individual or business using social media commercially, this could have more significant and wide ranging effects.

For instance, the following scenarios are all possible:

A father takes a video of his baby daughter and posts it on Facebook. Facebook sub-licences the video to a baby food company, which uses the video in a national marketing campaign. The father is not entitled to any payment and would not be entitled to stop the video being used under copyright law.

A company uploads a number of interesting photographs from its latest catalogue on Instagram. Instagram then sub-licences the copyright in one of the images to a clothing manufacturer for a substantial fee. The clothing manufacturer prints the image on t-shirts and sells millions of t-shirts. The company cannot stop this from occurring under copyright law, and is not entitled to receive any payment for the use of its photograph even though Instagram may be receiving a licence fee from the clothing manufacturer for the right to use the image.

A user finds an interesting image on a website, and posts it on their Twitter account for their friends to see. Twitter then licences the image to a third party which uses it commercially. The original owner of the image sues the third party for copyright infringement. The third party sues Twitter for selling the image when it wasn’t entitled to do so. Twitter can then sue the user for any loss which Twitter suffers.

Conclusion

All of the above scenarios may seem unlikely, particularly when one considers the likely mass exodus of users if any of the services began exploiting users’ copyright in such ways. Further, consumer protection laws and other laws may allow users to have some control over their content. However, as long as the social media services, many of which are owned by publically listed companies, continue to hold and possess substantial and commercially valuable copyright libraries, there is always a risk that policies will change in the search of quick profits. It is something to keep in mind the next time you or your company decide to post any potentially valuable material on a social media platform.

Bartier Perry

* Bartier Perry Pty Limited is a corporation and not a partnership. Liability limited by a Scheme approved under Professional Standards Legislation. All legal practitioners employed by Bartier Perry Pty Limited (including those described as partners) are members of the Scheme.